Birdsong v. City of Clarksdale

• Citation: 191 Miss. 532,3 So.2d 827
• Decision Date: 22 September 1941
• Docket Number: 34625.
• Court: United States State Supreme Court of Mississippi
• Parties: BIRDSONG v. CITY OF CLARKSDALE.

3 So.2d 827

191 Miss. 532

BIRDSONG v. CITY OF CLARKSDALE.

No. 34625.

Supreme Court of Mississippi

September 22, 1941

Appeal from Circuit Court, Coahoma County; Wm. A Alcorn, Jr., Judge.

J.H. O'Neal and John W. Crisler, both of Clarksdale, for appellant.

W.W. Venable, of Clarksdale, for appellee.

GRIFFITH Justice.

Cherry Street, running east and west, is one of the principal residential streets in the City of Clarksdale. It is 80 feet wide. On each side, next to the property lines, is a concrete sidewalk 4 feet wide, and on each side between the sidewalks and the central hard-surfaced pavement is a neutral strip about 13 or 14 feet wide. This neutral area was used as a parking strip for automobiles, and for going to and from automobiles and the like and for reaching the paved portion of the street, and had been habitually and customarily so used for a long time.

Appellant lived on the north side of this street some 400 feet from the east corner and about 300 feet from the corner to the west. Within the neutral strip and to the eastward of appellant's residence but in front of the property adjoining appellant on the east, there was a water meter located near the paved portion of the street. The meter was leaking, and this, aided by rains, had caused a ditch to form running from the meter in a northerly direction towards the sidewalk. This ditch was about 7 feet long, 2 1/2 feet wide and 2 feet deep. The City had actual notice of the existence of this ditch, and for a sufficient time to have remedied the situation or else to have guarded against it. There were no lights so located as to disclose the ditch at night, but there was sufficient of a diffused light to reveal the outlines of an automobile when standing on the neutral strip.

About midnight of the night in question, appellant was anxious to go to the business section of the City, and had ordered a taxicab for that purpose. While appellant was waiting on the sidewalk in front of his house for the arrival of the taxicab, then considerably overdue, appellant heard a neighbor getting into his automobile, which was parked a few feet to the east of the water meter, and knowing that this neighbor customarily went to work about this hour, appellant called to him and ran toward the neighbor's automobile and in doing so went in a southeasterly direction upon and partly across the neutral strip. Thus the ditch lay between the point where appellant left the sidewalk and the point where the neighbor's car was located, and in making his way, as mentioned, appellant fell into the ditch and was injured. He did not know of the existence of the ditch according to the present record, and as already stated, there was not enough light to disclose it.

The trial court granted a peremptory charge in favor of the City, and that action is sought to be supported on the argument that appellant was guilty of reckless negligence, considering the place and circumstances of the injury, and that in consequence there should be no liability therefor.

In 7 McQuillan Munic. Corp., 2d Ed., pp. 84, 85, it is said that the "space between the sidewalk and the roadway is a part of the street, although not intended for actual travel, and the municipality must protect pedestrians and other travelers from injury from defects in such part of the street;" and to the same effect is the text 13 R.C.L. p. 383. Under modern conditions the rule is not to be so broadly stated, and is subject to exceptions, as may be seen from an examination of the cases and annotations cited in 25 Am.Jur.Sec. 407, pp. 702, 703. The question will depend, therefore, more largely upon what under the proof had been, up to the time of the injury, the customary use which had prevailed as respects the neutral strip. Reasonable care must be exercised to keep streets in a reasonably safe condition for their accustomed use, in the accustomed manner of that use; and in order that this duty shall be performed, the city must use reasonable care to see that the street is kept reasonably free of such real dangers as will imperil the traveler when he is making the customary use, in the customary manner, and in the use exercises such caution as under all the circumstances of the case should reasonably have been expected of him.

We have already stated that the neutral strip in question had been for a long time habitually and customarily used as a parking space for automobiles, and for going to and from automobiles and the like and for reaching the paved portion of the street. It follows under the rule that the neutral strip here in question was as much a part of the street, so far as pedestrians were concerned, as was any other part of the thoroughfare; and the rule of reasonable safety is as obligatory in respect to the use at night as in the day.

And in the use of any portion of the street which is within the stated rule, any person, who has no actual knowledge to the contrary, has the right to presume and to act on the presumption that the way is reasonably safe for the accustomed use, whether by day or night, and he is not required to anticipate or be constantly on the alert for unreasonable dangers in his path to which his attention has not been called or...